Is office espionage legal?

From video surveillance to biometric identification, we can now collect more information than ever before about our employees but this information also create all sorts of new legal challenges. HRM looks into this legal minefield, with some surprising results.

Is office espionage legal?
One of the biggest challenges for HR and front line managers is working out whether their employees are actually working while they’re at work. From video surveillance to biometric IDs to key stroke tracking – there are any number of ways to watch the workplace. However, they’re not all legal. HRM looks into two cases that shed light on this grey area of the law.
Video Surveillance
Recording employees while they work can be problematic in two ways: privacy and evidentiary. Privacy concerns mean employers in general cannot record employees without their knowledge, and courts have shown that not all workplace video recording will be accepted as evidence.
However, the Landmark 2004 case Eastmond v. CP Railway showed that it can be legal to to record certain areas of a workplace. CP employee Erwin Eastmond objected to the on-going video surveillance of CP’s Toronto railyard, which was intended to prevent theft and vandalism, arguing that it was an invasion of his privacy.
Although the privacy commissioner initially upheld the claim, it was overturned on appeal. Federal Court of Canada Judge François Lemieux found that CP could record its employees because it was not doing so covertly and the recordings were only reviewed and kept if a crime was committed. Essentially the recording were part of an investigation, albeit it an on-going one into a crime that had not happened yet.
HR lesson:  the Court can support the use of video surveillance in some circumstances when it is overt and only used for the stated purpose (in this case, to prevent crime)
Biometric Identification
Plenty of workplaces use swipe cards and other means to track employees start and finish times, and sometimes movement through specific areas. Canadian case law is not consistent on whether biometric scanners infringe on an employee’s privacy interests, however, employers have still had some legal issues implementing biometric IDs.  One surprising case shows how the use of biometric technology exposed one unlucky employer to employee claims of discrimination and ‘eternal damnation’ from its Pentecostal employees.   
When 407 ETR Concession Company Ltd introduce biometric hand scanners, which assigned a number to each employee’s handprint, it soon faced complaints based on religious beliefs. Three employees who were members of the Pentecostal faith claimed that if they were in any way associated with the “mark of the Beast”, the number 666, they risked damnation. They requested accommodation and were eventually terminated for refusing to use the scanners.
A 2007 arbitration decision found that employees’ beliefs were "sincerely held" religious beliefs and they were therefore they were entitled to accommodation. The arbitrator also found it would not have constituted undue hardship for the employer to make an exception for the employees.
The key issue was that according to an expert witness, the system could have been modified to include a swipe card and password system for the objecting employees (whose religion prevented the taking of any measurement of a body part that would be quantified by a number.).
Lessons for HR: when implementing biometric technology, HR must show they have considered all options for accommodating employee requests (no matter how strange)

Read Part Two on: key stroke tracking and computer use monitoring.

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